ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007405

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/08/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background

Claimants position

The claimant has been employed by the respondent since 1963 . It was submitted that due to planned restructuring of positions the respondent approached the claimant on the 30^th September 2016 and made an offer of voluntary redundancy. It was submitted that the offer was made to the claimant on the basis of a five day week. On checking the figures the claimant discovered that they were incorrect and taking his long service into account the amount of redundancy the claimant was entitled to was over twice the amount the respondent had offered initially.

The claimant believes that he was offered Statutory redundancy in good faith and that when he agreed to accept statutory redundancy offered to him by the respondent there was a legitimate expectation on his part that the respondent would follow through and provide him with the correct lump sum calculation.

The claimant submitted that the respondent was duty bound when they approached him to accept voluntary redundancy and they should have been aware of what his redundancy lump sum calculations would have been.

It was submitted that the claimant had an expectation and that expectation should be honoured by the respondent and pay him the correct amount of his statutory redundancy .

Respondents position

The claimant is employed by the respondent as a head porter working 39 hours per week since 1^st March 1963. It was stated that during the economic downtown the respondent experienced a difficult few years trading which ultimately resulted in a downturn of approximately 20% in business. In 2008 there were four full time porters in the porter department, of which the claimant was part of. A restructuring programme of the porter department was necessary and it was decided on that basis that two porters were put on short time working on a Last In First Out basis. (LIFO)

Business continued to decline into 2009 and in an effort to retain two full time porters and all four porters in the department , including the claimant , were then placed on short time in March 2009, one of the porters was selected for lay-off on the basis of LIFO. However it was possible to avoid a redundancy situation as an alternative role in the respondent business was found which the person on selected lay off accepted.

The claimant and remaining two other employees were furnished with an RP9 and advised of his entitlements to seek redundancy in this regard, in the circumstances where he would likely be on short time for the future.

The respondent stated that at no time did the claimant serve an RP9 on the respondent.

On the 11^th April 2011 the claimant requested to return to full time hours .

At a meeting on the 25^th August 2011 between the parties the claimant was again offered alternative hours.

On the 16^th December 2011 the claimants Trade Union representative sent a letter stating that the claimant along with another employee would be applying for redundancy.

On the 20^th December 2011 the respondent wrote to the claimants representative stating there was no redundancy situation as the claimant was offered and refused additional hours.

The respondent advised the claimant on the 2^nd December that he was being restored to full time hours effective from the 1^st January 2017 and continues to work for the respondent without issue.

The respondent submitted additional legal arguments to support their position

Findings

Both parties made written and verbal submissions at the hearing.

I find that having examined all documentation submitted I find there are a number of issues that have arisen.

I find that when voluntary redundancy is offered both parties have the right and option to refuse, reject and withdraw the offer.

I find the respondent ‘s letter of the 7^th October 2016 where it states;

” Statutory redundancy is calculated at two weeks per year of service, with additional “bonus” week. Weekly pay for the purpose of statutory calculation is capped at €600. We have agreed that your statutory redundancy will be calculated on the basis of a 5 day week.”

I find that in this case the respondent offered the claimant redundancy, however having examined all of the documentation that I have received   I have not found any clarification how the respondent arrived at that figure quoted in their letter of 7^th October 2016 .

I find on the other hand that when claimant was offered voluntary redundancy he (claimant)had an expectation that it would be based on his 5 day working hours for the period his service.

I find that the claimant did not accept /reject voluntary redundancy offer but in the email dated the 11^th October to the respondent the claimant was seeking enhanced redundancy payment.

I find from the hearing there was a breakdown in communication between the parties;

A           was the claimant seeking statutory redundancy based on his full service and working 5 days a week.

Or

B           was the claimant seeking an enhanced payment over and above the statutory payment.

I find that the respondent had a right to set a dead line for acceptance of the voluntary redundancy which was done in the letter of the 7^th October 2016.

I find that since 1^st January 2017 the claimant is back working full time and that he has accepted this position.

Decision

[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Based on the claimant working full hours since the 1^st January 2017 I cannot support his claim for redundancy payments.

Dated:   17^th November 2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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